Hundreds of online child abuse investigations on hold pending Dwyer ruling

An Garda Síochána has confirmed its ability to investigate online child exploitation is being hampered by a ruling in the successful appeal brought by convicted murderer Graham Dwyer.

The ruling, which centred on the Garda’s ability to access mobile phone data retained by internet service providers, is preventing specialist gardaí obtaining warrants in up to 700 investigations into the possession or distribution of child abuse imagery online. The issue was first highlighted in the Irish Daily Star on Monday.

"Resulting from a ruling of the High Court, in 2018, the capabilities of An Garda Síochána in gathering certain material in investigations has been impacted," a Garda spokesman said on Tuesday. "The ruling of the High Court is under appeal by the State." The Garda declined to comment further.

The Supreme Court is due to hear a State appeal of the High Court's ruling in the Dwyer case next week.

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The case bypassed the Court of Appeal and went straight to the Supreme Court after the State argued the issue had major implications for the authorities’ ability to retain, access and use information generated by mobile phones in the investigation of serious crime.

In December 2018, the High Court found legislation allowing mobile phone data to be retained and accessed by gardaí under warrant breached EU law and the European Convention on Human Rights.

Right to privacy

General and indiscriminate retention of data without any prior review by a court or independent body was a breach of the right to privacy, Mr Justice Tony O’Connor ruled. He noted the Court of Justice of the EU had declared indiscriminate data retention cannot be justified even when fighting serious crime.

At issue was the practice of allowing a chief superintendent to issue warrants for access to mobile data rather than a District Court judge.

As a result of the ruling, for the last 12 months gardaí from the Online Child Exploitation Unit have been unable to act on hundreds of tip-offs, including many from foreign police forces, indicating the IP addresses of Irish citizens are being used to download or distribute images and videos of child sexual abuse.

Garda lawyers have advised any mobile evidence gleaned from warrants for access to mobile data would be open to challenge due to the Dwyer ruling. As a result, chief superintendents have been advised not to grant such warrants.

Digital rights expert and UCD associate professor of law TJ McIntyre said it was likely gardaí were still able to obtain mobile phone data “for surveillance and intelligence purposes” but that they were no longer confident any resulting evidence would stand up in court.

Data retention

The legal situation is unlikely to change before the Supreme Court returns its judgment, which could take several weeks or even months depending on the outcome of similar cases before the CJEU. Some legal observers believe the matter will be not be resolved until the passage of legislation to reform the State’s approach to data retention and bring it in line with EU law.

“I believe they are going to have to tear the whole thing down and start again,” Mr McIntyre said on Tuesday.

Specialist officers assigned to the Divisional Protective Services Units, which are being rolled out across the country, were briefed on the matter last week during a training session.

It is understood Minister for Justice Charlie Flanagan has also been briefed on the issue.

Dwyer (47) was convicted in 2015 of murdering Elaine O’Hara (36). Mobile phone data played a key role placing Dwyer in the area where Ms O’Hara’s body was later found.

The Supreme Court case relates only to the retention of Dwyer’s mobile phone data and will not result a retrial or acquittal, no matter its outcome.

However it may be used to boost Dwyer’s chance of success in a separate appeal he is taking against his conviction. That appeal is on hold pending the Supreme Court’s decision.